The Eleventh Hour: Gissendaner’s Stay of Execution Denied

Last month, Georgia was at the center of the national spotlight as Kelly Gissendaner, the only female Georgian on death row, was due for execution after being convicted of murdering her husband, Douglas Gissendaner in 1997. Prior to her death, the Eleventh Circuit heard Ms. Gissendaner’s appeal for a stay of execution. Gissendaner v. Comm’r, Georgia Dep’t of Corr., No. 15-14335, 2015 WL 5714152 (11th Cir. Sept. 29, 2015).

Ms. Gissendaner’s execution was originally scheduled for March 2, 2015. However, that evening the “doctor and … pharmacist were concerned about the cloudiness of the drugs and believed that they were not appropriate for medical use.” Id. at *4. Due to this concern, defendants postponed the execution. Based on this incident, Ms. Gissendaner brought suit in district court alleging Eighth Amendment violations for (1) being left in a state of uncertainty for nearly thirteen hours as she waited to be executed and (2) Georgia’s lethal injection protocol being unconstitutional. The district court granted defendants’ motion to dismiss Ms. Gissendaner’s claim. On September 29, 2015—the day in which the execution was rescheduled for—the Eleventh Circuit affirmed the district court’s decision. Ms. Gissendaner was executed early the next morning.

In its opinion, the Eleventh Circuit contributed to the district court’s reasoning by tying in one of the United States Supreme Court’s most controversial opinions of the summer, Glossip v. Gross, 135 S.Ct. 2726 (2015). Id. The court cited Glossip, stating that in order for Ms. Gissendaner to successfully challenge a method of execution, she must prove that the method “is sure or very likely to cause serious illness and needless suffering, and give rise to sufficiently imminent dangers.” Id. Additionally, the challenger will then need to establish an alternative method that is “readily implemented, and in fact significantly reduce[s] a substantial risk of severe pain.” Id. The court also emphasized that the Constitution does not protect against all risks of pain inherent in a method of execution. Id. at *2.

The Eleventh Circuit found that Ms. Gissendaner failed to meet the Glossip standard. Rather than establishing the proper risk for serious suffering, Ms. Gissendaner alleged that defendants’ conduct on March 2, 2015 suggested that there might be a problem with the lethal injection. The Eleventh Circuit disagreed with Ms. Gissendaner, stating that defendants’ behavior, if anything, suggested that they were cautious and took steps to avoid a risk of substantial harm in the execution process. As a result, the court determined that Ms. Gissendaner failed to meet the Iqbal standards of pleading “enough facts to state a claim to relief that is plausible on its face.” Id. at *2. The court also held, Ms. Gissendaner failed to mention an alternative method of execution as required by Glossip.

Judge Jordan filed a lone dissent stating sufficient facts were alleged to meet the Iqbal pleading standard and that the district court failed to accept all of the allegations as true or construe those allegations in the light most favorable to Ms. Gissendaner. Furthermore, the dissent distinguished Ms. Gissendaner’s current claim as an “as-applied” challenge to Georgia’s injection method as opposed to a “facial” challenge. Id. at *12. Ms. Gissendaner did not claim that the drug was unconstitutional on its face, Judge Jordan explained, but rather that the drug was dispensed unconstitutionally based on the State receiving defective cloudy drugs. Where a claim is not facial, Judge Jordan stated, a party does not have to identify an alternative method of execution. The majority disagreed with Judge Jordan, citing Baze v. Rees, 553 U.S. 35, 49 (2008), which not only had a very similar claim to Ms. Gissendaner’s, but was the first case where the Supreme Court announced the alternative method requirement.

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